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How to Apply for Divorce: A Procedural Guide

A procedural guide on how to apply for divorce.

It is important to note the difference between the various applications that can be made in family law.

A common statement family lawyers hear is, “I want a divorce”. While that sentence’s meaning might be clear to a layperson, this can mean several different avenues to a family lawyer. Some examples of what people can mean when they say this is: –

  1. I want to sever my marital status to my spouse;
  2. My spouse and I have assets that need to be divided, so I want to finalise my property settlement;
  3. There are children of the relationship between my spouse and I, but we can’t agree on who they should live with or what time they should spend with me/them; or
  4. A combination of (1) to (3).
Difference between Divorce and Separation.

If the intention is to dissolve a marriage, the process to apply for Divorce can be (somewhat) confusing. However, the Federal Circuit Court has attempted to make the process easier for applicants in recent times.

Eligibility

Before a party to a marriage is able to apply for divorce there are certain criteria which must be met first: –

  • If you have been married for longer than two (2) years, you must first have lived “separately and apart” for twelve (12) months before you are eligible to apply;
  • If you have not been married for longer than two (2) years, you must: –
  • Have lived “separately and apart” for twelve (12) months; AND
  • Produce a certificate from a qualified professional confirming you have attempted marriage counselling; OR
  • Produce a certificate from a qualified professional confirming they have assessed your case as unsuitable for marriage counselling, which is generally the case in family violence matters.

Living Separately and Apart

Whilst this may seem self-explanatory, complications can arise with the relevant twelve (12) month timeframes where parties to a marriage have been separated but living under the same roof or did live separately for a while but then resumed living together as a couple for a brief period before separating again.

Where parties have been living together under the same roof after separation, Affidavits will need to be filed by you, your former spouse and an independent third party that knows both parties confirming that you have indeed separated and are living under the same roof, including the reasons for that living arrangement.

If you have separated, resumed living together as a couple, then separated again, you will need to stipulate the dates you and your spouse resumed living together and separated. If that period is less than three (3) months, the Court will accept that you and your former spouse have been separated for twelve (12) months.

If longer than three (3) months, the twelve (12) month separation period commences counting again from when you and your former spouse ceased living together as a couple.

Significantly, the distinction in this regard is whether the resumption of cohabitation was “as a couple” or for other reasons not connected with attempting to reconcile your relationship. If the resumption of cohabitation was not an attempt to reconcile your relationship, then the time you were living together will not interrupt the twelve (12) month timeframe; however, if longer than three (3) months, you will need to file the same affidavits mentioned above in relation to being separated but living under the same roof.

Divorce Documents

Applying to the Court

Once you are eligible to apply, an Application for Divorce form must be completed and filed in the Federal Circuit Court of Australia or Family Court of Australia.

To do so, you will need to produce a copy of your marriage certificate. For this purpose, the Court will accept ceremonial certificates given to you at your wedding by an authorised celebrant or the marriage certificate provided by Births, Deaths and Marriages.

There is a filing fee for Applications for Divorce of $930; however, if you are a holder of a Centrelink card (healthcare card, pensioner concession card etc.), you are eligible to pay a reduced fee of $310.

Applications for Divorce can be filed by either party to the marriage, or by both parties jointly.

Once your application is filed, you will be allocated a hearing date on which a Registrar of the Court will consider your application for divorce.

Service

For applications for divorce filed jointly by both parties, there is no requirement to serve each other with copies of the filed Application.

If the application has been filed solely by one party to the marriage, then the Applicant must serve a copy of the application for divorce, a copy of the “marriage, families and separation” brochure produced by the Court, an Acknowledgement of Service (Divorce) form, along with any other documents filed in the Court.

Service can be effected in person or by post. However, you are not permitted to serve the documents on your former spouse yourself. Service by post is also not advised unless you are sure your former spouse will return the Acknowledgement of Service (Divorce) signed.

Anyone over 18 is able to serve your former spouse, however, to ensure the application is served properly it is recommended a professional process server be engaged.

Once served, the person who served your Application for Divorce and supporting documents must complete an Affidavit of Service, attaching the Acknowledgment of Service signed by your former spouse.

You will also need to complete an Affidavit Proving Signature, which is an Affidavit by you stating that the signature on the Acknowledgement of Service is that of your former spouse. A copy of the Acknowledgement of Service must be attached to this affidavit as well.

The Affidavit of Service and Affidavit Proving Signature must then be filed in support of your application for divorce, and you will then need to email sealed copies of these affidavits to your former spouse.

Hearing Date

If there are children of your marriage that are under 18 years of age, sole applicants will be required to attend Court on the Hearing date of the application. Joint applicants do not need to attend unless they indicate on the application form that they wish to be present.

If there are no children of the marriage, appearances will not be required at the hearing date.

After the Registrar confirms all necessary documents have been filed and considers the application, the Registrar will grant an Order for Divorce. The Order itself does not become effective until one (1) month and one (1) day after the Registrar makes the Order.

Ensuring all required documents are properly drafted and filed with the Court and all procedural requirements are complied with is imperative to ensuring your application for divorce is successful. Failure to comply can result in your application being requisitioned by the Court with a note to rectify any defects in your application, your application being adjourned on the hearing date with orders to produce further information or appear in court on the next occasion, or having your application dismissed.

Related Articles: Five Myths of Divorce and Separation, What is a property settlement and can you get it done before your divorce?

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